DOJ to appeal order to release detainee photos to Supreme Court

[JURIST] The US Department of Justice (DOJ) [official website] Thursday requested [motion, PDF] the US Court of Appeals for the Second Circuit [official website] to recall an earlier mandate requiring the government to release photos of alleged detainee abuse. The motion asks the court to recall their April ruling [JURIST report] because "the Solicitor General has determined that the government will file a petition for a writ of certiorari in this case, absent intervening legislation." Pursuant to Federal Rule of Appellate Procedure 41 [text], such a motion is allowed if it shows that the petition for certiorari to the US Supreme Court [official website] presents a substantial question and good cause for stay. If the Supreme Court denies the petition, the federal rule requires the court of appeals to reissue the mandate immediately. The motion also points out that Congress is considering legislation [S 1100 materials] that would exempt the disclosure of certain photographs under the Freedom of Information Act (FOIA) [text] in cases where the Secretary of Defense certifies that such disclosure would endanger US personnel. The proposed amendment to the FOIA, already agreed to [Senate record, PDF] by the Senate as an amendment to the Supplemental Appropriations Act [S 1054 materials, PDF], would apply to any photograph taken between September 11, 2001 and January 22, 2009 that involve the treatment of those "engaged, captured, or detained after September 11, 2001, by the Armed Forces of the United States in operations outside of the United States." In its motion, the government cites Second Circuit precedent to argue that:

[r]ecall of the mandate is warranted because the Solicitor General has determined that, if the aforementioned bill does not become law by the deadline for seeking Supreme Court review, the United States will file a petition for a writ of certiorari. As noted, the time for filing a petition for certiorari has not yet expired. Thus, the primary justification for the sparing use of the power to recall a mandate...is not implicated here.

The Second Circuit denied the government's petition to rehear the case en banc in March but later granted the government a 30-day stay to decide whether to file a petition for certiorari. The deadline for the government to file a writ of certiorari is June 9.

On Wednesday, former US Major General Antonio Taguba said that the photographs of detainee abuse at Abu Ghraib prison depict acts of rape and sexual assault [JURIST report]. The Pentagon has denied [Reuters report] the allegations. Earlier this month, US President Barack Obama decided to seek a delay [JURIST report] of the release of the photographs in question, contrary to a previous agreement by the DOJ to release them pursuant to a court order [order, PDF]. After Obama's decision to not release the photographs, the DOJ sent a letter [text, PDF] to district Judge Alvin Hellerstein saying that "the Government has decided to pursue further options regarding that decision, including, but not limited to the option of seeking certiorari." Last month, the DOJ had sent a letter [text, PDF] to Hellerstein saying that they would comply with his 2005 order to release 21 photos from Abu Ghraib. Hellerstein's order resulted from a Freedom of Information Act [text] challenge [ACLU materials] brought by the ACLU against the Department of Defense (DOD) [official website]. The DOD appealed the decision to the Second Circuit and lost [JURIST report].

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